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THIRTIETH CONGRESS— SECOND SESSION. 
Report No. 119. 

HOUSE OF REPRESENTATIVES. 



MILITARY CONTRIBUTONS. 
re$s , Houses <- ^UcV c \ t + oy( *-Va 



^ E C bWy 28, 1849. 



Mr. Toombs, from the Select Committee to whom the subject was 
referred, made the following 

REPORT: 

The Select Committee, to whom was referred the message of the 
President of the United States to the House of Representatives, 
in answer to a resolution of the House of the 18th December, 1848, 
requesting information u under what law or provision of the con- 
stitution, or by what other authority," the Secretary of the Trea- 
sury, witk the "sanction and approval* of the President, estab- 
lished " a tariff of duties in the ports of the Mexican republic 
during the war with Mexico," and " by what legal, constitutional, 
or other authority" the revenue thus derived, was " appropriated 
to the support of the army in Mexico," have had the same under 
consideration, and beg leave to submit the following report: 

The resolution to which the message of the President responds 
submits two important questions to our consideration: 1st. By 
what authority the tariff of duties upon imports into the Mexican 
territory in our military possession during the late war with that 
republic was imposed: 2d. By what authority the taxes thus raised, 
■were expended by the President. We shall proceed to the enquiry 
in the order here stated. The President admits, in the message 
under consideration, that he imposed the duties, and expended the 
money thus raised in support of the war at his discretion, and 
claims the legal right to do both acts. The enquiry is, therefore, 
narrowed down to the single question of the rightfulness of the 
authority thus exercised. The President, without expressly claim- 
ing sovereignty in his own person over countries and people sub- 
dued by our arms during the continuance of the war, and without 



2 Rep. No. 119. 

expressly denying the power of Congress " to make rules concern- 
ing captures on land and water," yet justifies his conduct in the 
premises upon principles which assert the one and deny the other 
power. This justificationr ests, and rests alone, upon the assump- 
tion that all belligerent rights with which a state of war invests 
the nation may be rightfully exercised by him, after a general de- 
claration of war, without any further legislation. This position, 
» though broad, is not broader than is necessary to cover the powers 
assumed and exercised by the President. He argues with zeal, 
with ingenuity and with ability, that the United States "upon the 
declaration of war against Mexico by Congress, were entitled to 
all the rights which any other nation at war would have pos- 
sessed." We fully concur with him in this opinion, and further 
we admit, that the acts for which he is now called in question 
were within the rightful powers of the nation, and undoubtedly 
belong to all sovereign States. They are attributes of sovereignty 
which nobody disputes. But the true question is, to what depart- 
ment of the government is the exercise of these powers confided? 
The proper decision of this question must depend, in our case, upon 
our own constitution. This is equally true in all constitutional 
governments. In despotic governments, these powers necessarily 
belong to the despot, for in him vests the sovereignty of his peo- 
ple. In England, these powers, under certain limitations, are ac- 
knowledged prerogatives of the crown. This right of demanding 
contributions from the enemy, which the President attempts to ex- 
pand to sufficient dimensions to cover these illegal transactions, is 
undoubtedly a belligerent right, but it belongs to sovereigns, and 
has been universally exercised and sometimes regulated by them, 
and by them alone. Vattel relates in the same chapter from which 
the President quotes, that during the long wars of France, in the 
reign of Louis XIV., " the sovereigns being respectively interested 
in the preservation of the country, used, on the commencement of 
the war, to enter into treaties for regulating the contributions on 
a supportable footing. ***** 

"This was preventing a multitude of disorders and enormities, 
committed on quiet people, and generally without the least advan- 
tage to the sovereigns at war." This principle obtains universal 
acceptance among all approved publicists. The powers conferred 
by the people upon this government are " limited and enumera- 
ted" in a written constitution. Whatever power is claimed by the 
President or any other department, or all other departments of the 
government, must be found here or it does not exist; it must be 
found here or belongs " to the States respectively," or remains in 
abeyance with " the people." The executive can claim powers 
only by ihis grant from the people. The President refers to this 
source of authority, and in this connexion cites two clauses of the 
constitution, to wit: the one which constitutes him "commander- 
in-chief of the army and navy," and that which imposes the duty 
upon him "to take care that the laws be faithfully executed." The 
object and exteni of these simple and appropriate grants to the 
executive are free frv ^ l ig'-rty, ^nd well expressed and defined 



Rep No. 1 19. 3 

by the language used. The President has endeavored to mistify 
each by combining them. The obvious meaning of these powers, 
taken in the connexion in which the President uses them, is, that 
he shall command the army to execute the laws, and nothing more; 
and while we agree with the President that the commander-in-chief 
of the army and navy would be the most proper officer "to demand 
and enforce" our belligerent rights, we deny his authority to *<'do 
either" until authorized by law. We must also dissent from that 
rule of constitutional construction which affirms that the non-exer- 
cise of a power expressly granted to the legislative branch of the 
government forfeits it to the executive. This result seems fairly 
deducible from the position assumed by the President, "that Con- 
gress prescribed no mode of conducting it, (the war,) but left the 
President to prosecute it according to the law of nations as his 
guide." We totally dissent from this reasoning; the declaration 
of war "without prescribing the mode of conducting it" left the 
President with all the men and money placed at his disposal, and 
with all the powers of commander-in-chief to execute the laws and 
none others. It left him with what the law gave him and nothing 
more. 

The powers of the commander-in-chief are necessarily great, he 
conducts the whole military and naval operations of the war, can 
use the public force committed to him by law to the total over- 
throw of the power of the public enemy, and the total subjugation 
of hostile people, and is clothed with all the powers necessary to 
the discharge of these functions of his office. But these powers, in 
the language of Judge Story, must be restrained to such "acts as 
are allowed by the laws of his own country." He can overthrow, 
but cannot establish; he can conquer nations, but he cannot govern 
them when conquered. 

Therefore the seizure of private property, of enemj's property 
within or without the United States, by way of pillage, contribu- 
tion or otherwise, can be justified or not, according to the necessi- 
ties of his condition br his command at the time of such seizure; 
but it is not lawful until authorized by Congress. The seizure of 
neutral property, or even the property of citizens of his own gov- 
ernment by a commander of an army, may be, and often is, justified 
from his peculiar condition, but is still not lawful. War is always 
waged against the governing power of the enemy, therefore public 
property must necessarily be seized and held for the government 
making war. It is not always made against subjects or people. It 
may be that a nation making war may not always choose to exer- 
cise all of its belligerent rights, and it is certain, that no nation in 
modern times has enforced them all vigorously. The submission 
of a people is usually a protection against further hostilities, it may 
satisfy the vengeance of the victors; under our system, at least, it 
protects them against pillage until the will of the nation is de- 
clared. That will may enforce all or relax any of these belligerent 
rights at its pleasure. That will, under our constitution, can only 
be expressed by Congress. The constitution declares that "Con- 
gress shall have power" to "declare war, grant letters. of marque 



4 • Rep. No. 119. 

and reprisal, and make rules concerning captures on land and 
■water." These grants confer the whole war power expressly upon 
Congress. Pillage, contributions, confiscations of enemy's property 
are all but modes of obtaining expletive justice, and are all equally 
embraced in this clause of the constitution, and confided by it to 
the legislature. The judgment of the Supreme Court of the United 
States has been rendered upon the effect of this clause of the con- 
stitution upon property found within the United States at the 
"breaking out of war. That judgment was founded upon principles 
decisive against the pretensions of the President. 

The case originated in an attempt to seize and confiscate the ene- 
my's property found in the United States, at the time of the decla- 
ration of war against Great Britain, without legislation. The 
court conceded that " war gives the sovereign full right to take 
the persons and confiscate the property of the enemy wherever 
found," and the right was fully sustained by the law of nations. 
The simple question which presented itself in that case was, 
whether this right of war could be enforced without legislation? 
The court decided that it could not — Brown vs. United States, 8 
Cranch, page 110. 

Chief Justice Marshall, in delivering the opinion of the court, 
said: "This usage (the law of nations) is a guide the sovereign 
follows or abandons at his will. The rule, like all other precepts 
of morality, humanity, and even of wisdom, is addressed to the 
judgment of the sovereign; and, although it cannot be disregarded 
by him without obloquy, yet it may be disregarded. It is subject 
to infinite modifications; it is not an immutable rule of law, but de- 
pends on political considerations which may continually vary. 
* * * Like all other questions of policy, it is proper for 
the consideration of a department which can modify it at will; not 
for the consideration of a department which can pursue only the 
law as it is written. It is proper for the consideration of the legis- 
lature, not of the executive or judiciary." "It appears to the court, 
that the power to confiscate enemy property is in the legislature, 
and that the legislature has not yet declared its will to confiscate 
enemy property which was within at the declaration of war." 

The decision is conclusive against the authority of the President 
to exercise this belligeient right of seizing and confiscating "ene- 
my property wherever found" without legislation, which lays at 
the foundation of his justification. But even conceding to the 
President the right to levy "contributions" upon the enemy, with- 
out the authority of Congress, the acts complained of would not 
fall within the concession. The power to levy contributions upon 
the enemy cannot include the greater power of imposing revenue 
laws upon conquered country. Contribution is a mere substitution 
for the right of pillage. 

The right of pillage must be confined to enemy property; the 
property of our own people, and even of neutrals, is wholly exempt 
from its operations. The revenue laws, imposed by the President, 
operated upon, and were intended to operate upon, the property of 
our own citizens and neutrals, as well as upon "enemy property." 



Rep. No. 111). 5 

To impose revenue laws upon any country, is the highest act of 
sovereignty. To impose them upon conquered countries, is the 
assertion of sovereignty over them — the right to govern them "in 
all cases whatsoever." And to this extent the President has 
carried the power. Under the pretended right to take "enemy prop- 
erty" in the enemy's country, he has taken that of our own citizens 
and neutrals. Under color of a military order, avowedly based 
upon the right to pillage the enemy, he has usurped and exercised 
the powers to "lay and collect taxes, duties, imposts, and excises" in 
Mexico, to "regulate commerce" between that country and foreign 
nations, including our own; to establish navigation laws, operating 
out of Mexico, and imposed penalties to be executed in Mexico 
upon our own vessels, for refusing or neglecting in their own ports 
to comply with his illegal commercial regulations. All these vast 
powers the President deduces from the belligerent right to pillage 
the enemy. As if conscious that his basis is too narrow to support 
this gigantic superstructure, the President casts about him for 
props with which to support it; and, by a course of singularly in- 
felicitous reasoning, attempts to compress thes^ sovereign powers 
into mere incidents to the right of blockade. He says that he en- 
tertains "no doubt that the military right to exclude commerce 
altogether from the ports of the enemy, in our military occupation, 
included the minor right of admitting it under prescribed condi- 
tions." If these logical terms can, with propriety, be applied to 
powers and duties so distinct and independent, the right to block- 
ade the ports and coasts of a conquered country, is the minor, and 
the right to govern conquests, when acquired, is the major of the 
proposition. The one is a mode of executing the laws, the other 
is the right to enact them. Blockade is a usual, ordinary means 
of executing the law declaring war. It belongs to him who has 
the conduct of hostile operations. Levying duties or imposts is 
exercising the power to make laws. The one results from the duty 
to make the conquest, the other from the right to govern it when 
made. The one is a sovereign power, the other an executive duty. 
The power of bockade is an incident of the power of capture and 
conquest; as a mode by depriving the enemy of means of suppport 
and resistance. But it is not true that the power to levy and col- 
lect money, as duties, on all property going into the enemy's 
country, at any point, is, or can be derived as a minor right to this 
right of blockade. The first is to distress and reduce the 
enemy, the latter can but operate to the enemy's relief by let- 
ting in the supply, instead of actually excluding it. Besides, 
conquests themselves, and the right of governing them belong 
to the nation. Reason and authority both maintain the truth of 
this proposition. What department of the government shall exer- 
cise this right of making laws for conquered countries depends 
upon the constitution of the victorious nation. By the British 
constitution, it is exercised by the king, in virtue of his preroga- 
tive, as long as the country is governed as a conquest, and then by 
the parliament. In despotic governments, it is necessarily exer- 
cised by the despot, in whom is concentrated all the powers of the 



6 Rep. No. 119. 

state. Here we have been already shown that the nation has de- 
clared in its fundamental law, that it shall be exercised by con- 
quest. 

We have thus far endeavored to demonstrate the illegality of the 
measures adopted by the President to raise and collect taxes in 
Mexico; it remains for us to consider the legality of his appropria- 
tion of the taxes thus raised. This point we think free from all 
difficulty or doubt. The President does not discriminate between 
the right to seize booty in war and the right to appropriate it, but 
places both rights upon the same footing, and claims them both as 
belligerent rights. This position is not founded in reason, nor 
supported by a single authority. Title by conquest is a good title 
to property, and when the nation has thus acquired property, it can 
only be divested by grant, and can only be appropriated to the 
public use by law. These results necessarily flow from owner- 
ship. All property taken from the enemy by the public force of the 
country belongs to the nation. Grotius, in concluding a long and 
learned enquiry into this subject, says: "The design of all this is 
to shew, that setting aside the civil law, and primarily, whatever is 
taken from the enemy in any military expedition, belongs to the 
prince or people who maintain the war." The late distinguished 
Justice Story, who dissented from the judgment given in the case 
of Brown vs. the United States, and laid down doctrines going a 
great way to sustain the power of the President to direct cap- 
tures, without any other authority than a declaration of war, yet 
fully recognised the absolute property of the nation in all such 
captures when made. He says, " as to the point upon which Puf- 
fendorf here expresses his doubts, I suppose that no person at this 
day entertains any doubt. It is now clear, that all captures in 
war enure to the sovereign and can become private property only 
by his grant." These taxes or contributions, as the President terms 
them, as soon as levied and collected, became the property of the 
United States, and like other moneys belonging to. the United 
States, could not even be appropriated to carrying on the war with-, 
out the authority of Congress independent of these general prin- 
ciples. Express jurisdiction is given by the constitution to -Con- 
gress over this species of public property; it declares, that "Con- 
gress shall have power" to make "rules concerning captures on 
land and water," which the Supreme Court, in the case before re- 
ferred to, declarrs to be "an independent substantive power, not 
included in that of declaring war." The President also attempts 
to fortify himself under the act simply declaring war. This de- 
cision annihilates his implication. The President tells us this 
fund was applied "towards defraying the expenses of the war," 
but he does not tell us that it was applied " towards defraying" 
those " expenses of the war" which were authorized by law. If 
he had done so, his application of them would have been free from 
censure; but he claimed and exercised the power to apply them to 
" expenses of the war," as he and not such as the law might au- 
thorize. The imperfect and incomplete accounts rendered by 
him and those under his command to Congress, throw but small 



Rep. No. 119. 7 

light upon these transactions. How much money was collected, 
and how it was applied, is now and perhaps will forever remain a 
mystery. The system adopted by him forbid all idea of real ac- 
countability in his agents, we know that the amount accounted for 
stands in ludicrous contrast to the estimates of his Secretary of the 
Treasury. 

We know that some of the funds collected have not been ac- 
counted for, and that the President now asks us for legislation to en- 
able him to force settlements out of his agents in their illegal 
transactions. We learn from the current history of the times that 
he ra.sed troops in Mexico without authority of law, and we pre- 
sume he supported them also without its sanction. He tells us that 
he applied a portion of the funds to the recruiting service. The 
constitution gives to Congress the right "to raise and support ar- 
mies," and imposes the limitation upon them that "no appropria- 
tion of money to that use shall be for a longer terra than two years.'' 
If the President can levy contributions at his pleasure upon the 
enemy, and raise armies or even support those already raised by 
Congress with such contributions, then this provision of the consti- 
tution is abrogated, and popular liberty has lost one of its firmest 
supports. Our fathers were wisely distrustful of that great instru- 
ment of human misery and great enemy of public virtue and popu- 
lar liberty, war, and therefore placed strict and salutary constitu- 
tional checks upon both its inception and continuance. How it 
can be begun without consulting Congress, the nation has already 
seen in the commencement of the Mexican war; in the exercise of 
this power to levy and collect taxes at will upon countries subdued 
by our arms, and appropriate them to the raising and supporting 
troops at. his discretion, he has taught us how it can be continued 
in spite of the constitutional limitation upon appropriations for that 
purpose. It is the peculiar duty of the House of Representatives 
to defend the property and purse of the nation; they have been 
invaded, lawlessly invaded by the President, in the acts herein ex- 
amined. We believe it is the solemn duty of Congress to take de- 
cided action for the vindication of the constitution of the country, 
and the rights of the people, thus violated by the President. We 
recommend the adoption of the following resolution, and submit 
the propriety of further action upon the subject to the wisdom and 
patriotism of the representatives of the people. 

Resolved, That the powers exercised by the President of the 
United States, in establishing "a tariff of duties in the ports of the 
Mexican republic during the war with Mexico," and appropriating 
the "revenue thus derived" to objects other than those authorized 
by acts of Congress, were not warranted by the constitution and 
laws of the United States, but were in derogation of both. 

R. TOOMBS, 
GARNETT DUNCAN, 
J. COLLAMER, 
W. DUER. 



8 Rep. No. 119. 



MINORITY REPORT 



February 28, 1849. 



Mr. McClernand, from the Select Committee, to whom was referred 
the message of the President of the United States, in answer to the 
resolution of the House of Representatives, calling for informa- 
tion by what authority he had " established a tariff of duties in 
the ports of the Mexicun republic, during the war with Mexico;" 
and by what authority he had "undertook to appropriate the rev- 
enue thus derived to the support of the army in Mexico, without 
the sanction of the tax laying and appropriating power of Con- 
gress," Sfc, submitted, on behalf of himself and Mr. Venable, 
another member of that committee, the following 'minority report: 

The resolution of the House, and the message of the President, 
which were referred to the committee, present two inquiries: First, 
whether the President exercised authority not conferred on him in 
ordering, in his militairy character, contributions to be levied, in 
the form of duties, on imports in the Mexican ports? Secondly, 
whether he did not exceed his authoritv in causing those contribu- 
tions to be applied for the support of the war. 

In order to a clear and satisfactory solution of these questions, 
it is proper to state, first, the facts of the case, and next, the law 
arising upon those facts. What, then, are the facts'? Our land and 
naval forces having captured a number of the Mexican ports, the 
President issued his order, in duplicate, to the Secretaries of the 
Navy and of War, as follows: 

Washington, March 31, 1847. 

Sir: Being charged by the constitution with the prosecution of 
the existing war with Mexico, I deem it proper, in the exercise of 
an undoubted belligerent right, to order, that military contributions 
be levied upon the enemy in such of their ports or other places as 
now are, or may be hereafter, in the possession of our land and 
naval forces by conquest; and that the same be collected and ap- 
plied towards defraying the expenses of the war. As one means of 
effecting this object, the blockades at such conquered ports will be 
raised, and they will be opened to our own commerce and that of 
all neutral nations, in articles not contraband of war, during our 
military occupation of them; and duties on tonnage and imports 
will be levied and collected through the agency of our military and 
naval officers in command at such ports, acting under orders from 
the War and Navy Departments. 



Rep. No. 119. 9 

I transmit to you herewith, for your information and guidance, a 
copy of a communication addressed by me to the Secretary of the 
Treasury on the 23d instant, instructing him to examine the exist- 
ing Mexican tariff, and to report to me, for my consideration, a 
scale of duties which he would recommend to be levied on tonnage 
and imports in such conquered ports, together with such regulations 
as he would propose as necessary and proper, in order to carry this 
policy into effect, and also a copy of the report of the Secretary of 
the Treasury, made on the 30th instant, in answer to my communi- 
cation to him. The scale of duties, and the regulations for their 
collection as military contributions exacted from the enemy, re- 
commended by the Secretary of the Treasury in this report, have 
been approved by me. 

You will, after consulting with the Secretary of War, so as to 
secure concert of action between the War and Navy Departments, 
issue the necessary orders to carry the measure proposed into im- 
mediate effect. 

JAMES K. POLK. 

To the Secretary of the Navy. 

jVide Ex. Doc, 1st session 30th Congress, vol. 2, No. 8, p 558. J 

In obedience to this order the Secretaries of the Navy and of 
War caused the measure alluded to to be carried into effect. Such 
are the facts. What, next, is the law arising upon those facts'? 
This is a very delicate and important question, involving a view, 
not only of the laws of modern warfare, but, also, of the nature 
and functions of the different departments of our government. 
War is the forcible resort of nations to obtain that justice which is 
refused to pacific appeals; and in a general view, as a political sub- 
ject, divides itself into two branches: First, into what is delibera- 
tive; secondly, into what is executive. The deliberative branch 
involves the consideration and decision of the causes for war, and 
properly appertains to the legislature. Hence under our constitu- 
tion the "power to declare war, grant letters of marque and reprisal, 
and make rules concerning captures on land and water," is vested, 
in Congress. And for corresponding reasons, and in like manner, 
the executive branch is confided to the President, who is " com- 
mander-in-chief of the army and navy of the United States, and of 
the militia of the several States, when called into the actual ser- 
vice of the United States." In short, the government of the United 
States has succeeded to the exercise of the original sovereignty 
of the several States over the subject of war, Congress being the 
constitutional agent of the exercise of that sovereignty, as to de- 
claring war; and, in like manner, the President, as to waging war. 

This premised, the question arises, what is included in the execu- 
tive branch of war? The obvious answer is, everything that be- 
iongs to the mode of waging or of executing war allowed by the 
acknowledged laws of nations, and that is not prohibited by the 
constitution or the laws passed in pursuance thereof. Was, then, 
the act of the President — levying military contributions, in the 
form of duties on imports, in the Mexican ports — an executive 



10 Rep. No. 119. 

act? We insist that it was, for the following, among other rea- 
sons: 

First. Because the act was essentially a means or a mode of pro- 
secuting war; its effect was to lessen the enemy's resources and to 
weaken his power. In illustration, we might suppose the example 
of a people inhabiting an island, having a large commerce and but 
one port, in which all, or the principal portion, of their public 
revenues were collected. Of course, for an enemy to seize into 
his hands the revenues of this port, would be to aim a fatal, if not 
a decisive, blow at the means of making further resistance. Cuba, 
as an independent power, (having but one important port, Havana,) 
would afford a practical illustration of this truth. 

Secondly. The act was necessarily and properly an executive 
act, because it sprang from an emergency, and because, too, it could 
only have been effected and maintained by military force. 

Thirdly. The discretion to perform or not to perform the act 
was properly an executive discretion, because it was only the com- 
mander who could have exercised a practical judgment, upon view 
of this case, whether and how far the success of his arms would be 
promoted by the measure. 

It being thus shown that the order of the President was an act 
falling within the executive branch of war, it remains to inquire 
whether it was prohibited by the laws of war. We think not. It 
appears to us that reason and propriety would forbid such a con- 
clusion; certainly the examples of enlightened nations forbid it. 
We cite one example to illustrate all the rest — an example familiar 
to American citizens. On the 1st of September, 1814, the British 
land and naval forces, under command of General Sherbrook and 
Admiral Griffith, took hostile possession of Castine, in the State of 
Maine. On the same day, and on the 5th of the same month, the 
same officers issued their proclamations for the government of the 
place, and levying a tariff of duties on commerce coming into that 
port. While the place was occupied by the enemy, British goods 
were imported in a British vessel into the port, upon which duties 
were afterwards claimed by suit by the collector of customs for 
the United States, after the restoration of the place under the trea- 
ty of peace.* The Supreme Court of the United States, in deliv- 
ering their opinion in the case, held as follows: 

"Under the circumstances, we are all of opinion that the claim 
for duties cannot be sustained. By the conquest and military oc- 
cupation of Castine, the enemy acquired that firm possession which 
enabled him to exercise the fullest rights of sovereignty over the 
place. The sovereignty of the United States over the territory 
was, of course, suspended, and the laws of the United States could 
no longer be rightfully enforced there, or be obligatory upon the 
inhabitants who remained and submitted to the conquerors." — 
United States v. Rice, 4tk Wheatori's Reps., p. 254. 



Vide Williamson's History of Maine, p. 650. 



Rep. No. 119. 11 

Again, Justice Story, in delivering his opinion in the case gf the 
United States vs. Hayward, held as follows: 

"By the conquest and occupation of Castine, that territory passed 
under the allegiance and sovereignty of the enemy. Thesovereignty 
of the United States over the territory was, of course, suspended, and 
the laws of the United States could no longer be rightfully enfor- 
ced, or be obligatory upon the inhabitants who remained and sub- 
mitted to the conquerors. Castine, therefore, could not, strictly 
speaking, be deemed a port of the United States, for its sovereignty 
no longer extended over the place; nor, on the other hand, could 
it, strictly speaking, be deemed a port within the dominions of 
Great Britain, for it had not permanently passed under her sove- 
reignty. The right which existed was the mere right of superior 
force, the allegiance was temporary, and the possession not that 
firm possession which gives the conqueror plenum dominium et 
utile, the complete and perfect ownership of property." — 2d vol. 
Gallison's Reps., pp. 500 and 501. 

In another view of the subject, it may be urged with much force 
that the President stands justified by virtue of his duty, under the 
constitution, "to take care that the laws be faithfully executed;" 
which, of course, involves a correlative power adequate to the pur- 
pose. Now, Congress is the law-making power under the consti- 
tution, and having enacted a recognition of the war between Mex- 
ico and the United States, and having voted men and money to 
enable the President to prosecute it to a speedy and successful ter- 
mination, and in fact having directed him to do so, it became not 
only his constitutional prerogative, but also his sworn duty, to avail 
himself of every method of compliance approved by his judgment, 
permitted by the limitations already laid down. 

It will scarcely be denied that the President had competent au- 
thority to enforce either a strict or modified blockade of the Mex- 
ican ports — that he may have lawfully excluded commerce alto- 
gether from those ports, or have admitted it at intervals of time, 
or in particular articles, in the rightful execution of war. And if 
so, was he not equally authorized, within the same limit, to admit 
commerce upon terms — upon the payment of duties? To the im- 
porter, certainly, the concession of such terms was an amelioration 
of the harsher rule of absolute commercial exclusion. His consent 
was consulted in one case, and diregarded in the other. The power 
exercised in one case was clearly an abatement of that exercised 
in the other — the one as the minor power, is included in the other 
as the major. Nor can there be any difference in the nature of the 
two powers, for it is supposed that they were called into exercise 
from like military motives and for like military objects. So that, 
upon the assumption that the importer pays the duty, as some have 
claimed, the argument, nevertheless, is in favor of the President. 

But is it true that the importer pays the duty assessed upon im- 
ports? At this late day, it will scarcely be denied by anv one ac- 
quainted with the subject, that the consumer is ultimately charged 
with the amount of the duty, augmented by additional charges for 



12 Rep. No. 119 

interest upon capital, and for the profits of venders. Ada» Smith, 
treating of this subject, says: 

"Such taxes, in proportion to what they bring into the public 
treasury of the State, always take out or keep out of the pockets of 
the people more than almost any other taxes. They seem to do 
this in all the four different ways in which it is possible to do it." 
—Vol. 2, page 487. 

Not only were those contributions levied upon the Mexican peo- 
ple — consumers,, but they were, pro tanto^ a seizure of Mexican 
revenues; appealing by a strong motive, both to the government 
and people, in favor of peace. 

It is probably admitted that Mexican excises were liable to hos- 
tile seizure and use; and, if so, were not Mexican customs liable 
to the same treatment? The two cases are not distinguishable in 
princinle; the military authority of the commander representing 
the conqueror in waging war is precisely the same in each. The 
true position, therefore, is that all the commerce entering Mexico, 
for Mexican consumption, was in truth Mexican commerce, liable 
to be excluded entirely, or to be admitted upon terms in the sound 
discretion of the commander. And so of the revenues collectable 
from that commerce; they, also, were in truth Mexican revenues, 
ultimately drawn from the Mexican people, and liable to be seized 
by the commander. As the commander had the right to seize the 
.Mexican revenues in the public treasury of the enemy, so he had 
the same right to seize them in the hands of a Mexican collector in 
a captured port, or to seize them in their source, in the right to 
collect them himself, upon commerce coming into such a port. 
There can be no possible difference, in^principle, between the right 
of the commander to collect the revenues accruing on commerce 
entering a port in his hostile possession, and his right to seize such 
revenues after they have been collected by a Mexican officer. 

It has been urged that Congress possess the power, under the 
constitution, " to lay and collect taxes, duties, imposts and ex- 
cises," and that the act of the President was in derogation of this 
power. Grant the premise, still the conclusion does not follow. 
The question here is not whether Congress possess this power, but 
whether they possess it in a character and for objects incompatible 
with the act of the President? To determine this question cor- 
rectly, reference must be had to the nature of the power and to its 
constitutional offices. What, then, is its nature? It is essentially 
& deliberative and legislative power; it looks to equal, uniform and 
permanent operation. It is not designed merely for an emergency, 
but to support the government in peace and in war. It is to gov- 
ernment what aliment is to animal life — without it government 
could not exist. Its operation is felt by all within the sphere of 
its jurisdiction — it involves the consent of all; and hence involves 
deliberation and legislation. 

The constitution has defined the power to be strictly of a strictly 
legislative character, in several clauses. First, in the provision that 
"representatives and direct taxes shall be apportioned among the seve- 
ral States, which maybe included within this Union, according to their 



Rep. No. 119. 13 

respective numbers," &c. Also, in the provision that "all duties, 
imposts and excises shall be uniform throughout the United States." 
Also, in the provision that " all bills for raising revenue shall ori- 
ginate in the House of Representatives." And, if further authority 
were needed, that of our revolutionary ancestors might be quoted, 
who proclaimed it as the cause of their separation from the mother 
country, that she had taxed them without their consent in parlia- 
ment. It is known and admitted that the animating and moving 
principle of that revolution was the inseparability of taxation and 
representation. 

The constitutional office of this power is what the nature of the 
power implies, and what has been already, in effect, stated. 
It is in the language of the constitution "to pay the debts, and 
provide for the common defence and general welfare of the United 
States," in other words to raise revenue; to raise revenue generally, 
for civil as well as military purposes. 

What now is the distinction to be drawn from these remarks be- 
tween the power exercised by the President, in his military capa- 
city, and the power thus accorded to Congress? None, perhaps, so 
blind as not to see it; he who runs may read it. The one is an 
exigent military power, the other is an ordinary legislative power. 
The one is given by the constitution and is defined by the laws of 
war, the other is both given and defined by the constitution. ■ The 
one may be exercised to subsist our own troops, or to cut off the 
subsistence of the enemy; the other may only be exercised to 
raise revenue for the use ot the government. Under the one, Con- 
gress msry "lay and collect taxes, duties, imposts, and exercises," 
but the constitution enjoins that those "duties, imposts, and ex- 
cises shall be uniform throughout the United States," and that the 
bills laying them "shall originate in the House of Representatives." 
Under the other, the commander may exclude foreign commerce al- 
together from one of the enemy's ports in his possession; admit it 
in another upon certain terms, and in another upon still other 
terms. The one power is designed, in the form in which it is granted 
to shield our own people from pecuniary oppression; the other is 
designed for a contrary effect, to oppress the enemy. The two 
powers, therefore, are nbt incompatible — they harmonize according 
to their respective natures and objects. In a just view they are 
auxiliary to each other, and may be exercised consistently within 
their legitimate spheres. 

They who would combat the correctness of these view r s, must 
necessarily assume the proof of these two propositions. First, that 
the power of Congress "to lay and collect taxes, duties, imposts 
and excises," may be extended to an extra territorial port, or in 
other words, that the subsequent constitutional limitation that "all 
duties, imposts, and excises shall be uniform throughout the United 
States," is not a virtual limitation of the operation of the fore- 
going power to the limits of the United States, as contradistin- 
guished from their external territories. Secondly, admitting the 
truth of the foregoing proposition, in case of peace, whether the 
same power may be extended during actual war, to a captured port 



14 Hep. No. 119. 

of the enemy, held necessarily by military force? Upon these 
points proofsare demanded and expected. 

Again, it is urged that Congress possess the "power to make 
rules concerning captures on land and water." This is very true. 
But we contend that this power does not govern the present case. 
A sound principle of construction requires that the constitution 
should be so construed as to give practical and harmonious effect 
to all its provisions. Upon this principle, the power of Congress 
to "make rules concerning captures" should be construed consist- 
ently with that of the President as "commander-in-chief," and 
executor of the laws. The vigor and usefulness of both powers 
should be preserved, they should be regarded as auxiliary powers, 
looking to a common object, the security of the State. 

But if we accord to Congress an exclusive power to authorize 
and control captures in all cases, we necessarily, by .consequence, 
for many authorized objects, nullify the power of the President as 
"commander-in-chiet " and executor of the laws, and palsy the arm 
of self-preservation; we, in effect, expunge a part of the constitu- 
tion, and at the same time overthrow the great principle of reci- 
procity upon which the international code rests — placing ourselves 
at disadvantage with every other nation in the contest of arms. Such 
could not have been the design of the framers of the constitution. 
No; the true intent and meaning of that instrument, in this par- 
ticular, is to impart to Congress what would ordinarily belong to 
the legislature of every State — the power to make rules for the ad- 
judication and condemnation of captures, for the disposition of 
prizes, and for the control of prisoners of war. The statutes of 
England and the United States may be adduced in support of this 
position. The act of Congress of April 23, 1800, provides what 
shall be deemed a valid prize, and how prizes shall be disposed of. 
If the captured vessel be of inferior force to that of the captor's, 
the prize is to be "equally divided between the United States and 
the officers and men making the capture; but if it be of superior 
force, the prize shall be the sole property of the captors." These 
regulations were dictated by considerations of public policy, and 
were designe'd to stimulate American citizens to active and zealous 
co-operation against the public enemy. During the last war with 
Great Britain, other acts were passed bearing on the same point; 
and, among the number, the act of June 26, 1812, authorizing the 
President to issue instructions to private armed vessels for the regu- 
lation of their conduct, and the act of July 6, 1812, authorizing 
him to make regulations for the support and exchange of prisoners 
of war. And then, or at any time, Congress, in virtue of the same 
power, might have enacted corresponding regulations for the dis- 
position of captures made by our land forces. 

To what extent these regulations may be pushed it would be dif- 
ficult, if it were desirable, to define; but certainly they do not 
conflict, either in principle or effect, with the powers of the Presi- 
dent as comrnander-in chief and executor of the laws. These pow- 
ers exist, independently of Congress, under the constitution or the 
laws of war True, Congress may limit the nature and objects of 



Rep. No. 119. 15 

war, but in the absence of any such limitation the President may 
exercise any right and perforin any act authorized by modern war- 
fare; he may execute the law declaring general war by besieging 
or storming cities, by capturing enemy property, by fighting bat- 
tles, or by all these methods. He may even devastate our own 
frontiers to arrest the invader. "Peter tee Great," in his flight 
before the army of Charles XII., to stop the impetuosity of 
a torrent which he could not withstand, destroyed his own country 
for about four score leagues in length. By this means the Swedes 
became quite spent with want and fatigue, and at Pultowa the 
Russian monarch reaped the fruits of his circumspection and sacri- 
fices." Of course, the President would have an equal right to de- 
vastate the territory of the enemy. So he would have an undoubted 
right to destroy one of our own public vessels, as in the case of 
the Philadelphia, or our own military stores, to prevent their fall- 
ing into the hands of the enemy, or to destroy the vessel or stores 
captured from the enemy to prevent their re-capture. In short, he 
is to judge of the methods of carrying on war; he may seize and 
use the enemy's cattle for the support 6*f his army, or he may levy 
contributions in kind or money for the same purpose, or to weaken 
the enemy. As the representative of a nation in waging war he 
may, in the exercise of a sound discretion, do any or all these 
things. Vattel says: 

"A. country is ravaged and. rendered uninhabitable, for making 
a barrier for covering a frontier against an enemy who cannot be 
stopped any other way. A hard resource, indeed! but may it not 
be used against an enemy when, with the same prospect, a sover- 
eign lays waste his own provinces'?" Vattel, b. 3, ch. 9, sec. 167, 
p. 432. 

Again: "A nation has a right to deprive the enemy of his pos- 
sessions and goods, of everything which may augment his forces 
and enable him to make war. This every one endeavors to per- 
form in the manner most suitable to him. A nation on every op- 
portunity lays its hands on the enemy's goods, appropriates them 
to itself, and, at least, in part procures an indemnification, an 
equivalent either for the very cause of the war, or for the ex- 
penses and losses resulting from it; a nation here does itself jus- 
tice." Idem., sec. 161, p. 429. 

Again: "Instead of the pillage of the country and defenceless 
places, a custom has been substituted more humane and more ad- 
vantageous to the sovereign making war; I mean that of contribu- 
tions. Whoever carries on a just war, has a right of making the 
enemy's country contribute to the support of the army, and to- 
wards defraying all the charges of the war." Idem., section 165, 
page 431. 

But if Congress possessed an exclusive power to authorize and 
in all cases to control captures, yet they have not done so in re- 
gard to captures by our land forces; so that the power of the Pres- 
ident in this regard was commensurate with his rights and obliga- 
tions, as commander-in-chief and executor of the laws. His act 



16 Rep. No. 119. 

was in no wise inconsistent with any law of Congress; for Con- 
gress had not legislated upon the subject. 

Again, it is urged that Congress possess the power, under the 
constitution, "to regulate commerce with foreign nations," &c. 
This also is true; but the alleged incompatibility between this 
power and that exercised by the President is not perceived. The 
remarks submitted in relation to the power of Congress "to lay 
and collect taxes, duties, imposts, and excises," are very much 
illustrative of this power. It is an ordinary civil power, designed 
to operate in peace, and to regulate the commerce of friendly na- 
tions. In war the power is necessarily suspended between bel- 
ligerents. 

Kent says: "One of the immediate and important consequences 
of the declaration of war is the absolute interruption and inter- 
diction of all commercial correspondence, intercourse, and deal- 
ing, between the subjects of the two countries. The idea that 
any commercial intercourse or pacific dealing can lawfully subsist 
between the people of the powers at war, except under the clear 
and express sanction of thfc government, and without a special 
license, is utterly inconsistent with the new class of duties grow- 
ing out of a state of war. The interdiction flows, necessarily, 
from the principle already stated; the state of war puts all the 
members of the two nations, respectively, in hostility to each 
other; and to suffer the individuals to carry on a friendly or com- 
mercial intercourse while the two governments were at war, would 
be placing the act of government, and the acts of individuals, in 
contradiction to each other. It would counteract the operations 
of war, and throw obstacles in the way of the public efforts, and 
lead to disorder, imbecility, and treason. Trading supposes the 
existence of civil contracts and relations, and a reference to courts 
of justice; and it is, therefore, necessarily, contradictory to a state 
of war. It affords, aid to the enemy in an effectual manner, by 
enablingthe merchants of the enemy's country to support their 
government, and it facilitates the means of conveying intelligence 
and carrying on a traitorous correspondence with the enemy." 

"There cannot exist, at the same time, a war for arms and a 
peace for commerce." Kent's Corns., vol. 1, pages 63 and 64. 

But this is not all. The same authority exercised by the Presi- 
dent had been previously exercised by his military subordinates, of 
distinguished experience and merit, connected with the navy and 
the army, upon their own responsibility. Commodore Stockton, 
more than seven months before the date of the order issued by the 
President, issued the following circular order: 

"From this date, August 15th, 1846, the tonnage duties on all 
foreign vessels arriving in the ports of California will be fifty cents 
per ton. 

"And the duties on all goods imported from foreign ports will be 
fifteen per cent. c ad valorem,' payable in three instalments of 30, 
80, and 120 days. 

"R. F. STOCKTON, 
" Commander- in- chief ', and Governor 
of the Tatiiory cf California*™ 



Rep. No. 119. IT 

General Scott, duriDg the occupation of the city of Vera Cruz by 
our forces, issued the following general order, dated three days 
prior to that issued by the President: 

Head-quarters of the Army, 
Camp Washington, before Vera Cruz, March 28, 1847. 

As soon as the city of Vera Cruz shall be garrisoned by his brig- 
ade, Brigadier General Worth will become the temporary governor 
of the same. 

Without disturbing the ordinary functions of the civil magis- 
tracy, as between Mexicans and Mexicans, he will establish strict 
police regulations for securing good order and good morals in the 
said city. 

He will also establish a temporary and moderate tariff of duties, 
subject to the approval of the general-in-chief and Commodore 
Perry, commanding United States home squadron, on all articles 
imported by sea from countries other than the United States; the 
proceeds of said tariff to be applied to the benefit of the sick and 
wounded of the army, the squadron, and the indigent inhabitants 
of Vera Cruz. 

The tariff so to be established will be continued until the in- 
structions of the government at home shall be made known in the 
case. — Vide Ex. Doc, 1st session 30th Congress, vol. 7, No. 60, p, 
930. .. 

In pursuance of this order the following measure was taken, viz: 

The following tariff of duties is decreed and announced for the in- 
formation of all concerned. 

Vera Cruz, April 3, 1847. 

1. All articles introduced by regularly appointed sutlers, (who 
will be required to exhibit to the assistant adjutant general the 
evidence of their appointment,) called and known as soldiers' 
necessaries, as also supplies of all kinds for officers, are dutyfree; 
but to avoid misapprehension or fraud, all articles imported by 
that class of persons will be entered at the custom house, and ar- 
rangement made with the collector for payment of duties on the 
whole cargo, subject to restitution (or freedom from duty) of such, 
articles or the value thereof as may be sold to officers or soldiers. 
Said articles or value to be certified and sworn to, in a manner sa- 
tisfactory to the collector, and in conformity with such regulations 
as he may adopt, under sanction of the commander or governor of 
Vera Cruz and dependencies. 

2. On provisions 5 per cent, ad valorem. 

On wines, cider, ale, and porter, 15 per cent., ad valorem. 

On all other liquors 75 per cent.-, ad valorem. 

On raw cotton 4 cents per pound. 

All other articles of merchandize 10 per cent., ad valorem. 

3. Several foreign vessels having arrived and being under deten- 
tion, before the occupation, are admitted under the foregoing regu- 

2 



18 Rep. No. 119. 

lations; but henceforth all foreign vessels arriving will be held 
subject to such duties as said vessels or cargoes would be required 
to pay in any port of the United States, or to exhibit, before admis- 
sion, evidence of entry and payment of duties in the United States; 
but always subjected to the additional duty hereby imposed. 

The collector of the port will draw up and submit for approval 
port regulations, which, when approved, will be duly imposed. 

It is further decreed that foreign goods, in deposit in the United 
States, arriving at this port will be admitted by paying duties as 
per tariff of the United States, the same arriving *at this port in 
American bottoms. 

The foregoing regulations to be in force until otherwise directed 
by the governor for the time being, or the orders of the govern- 
ment of the United States. 

W. J. WORTH, Governor, 
Brevet Major General, Commanding. 
WM. J. McCLUNG, 
Commander U. S. Navy. 

Idem. 931. 

Thus, not only was the order of the President preceded and in- 
vited by similar orders from his military subordinates, but it was 
afterwards virtually ratified by a constitutional branch of the gov- 
ernment, in the most solemn and authentic form. The " treaty of 
peace, friendship, limits, and settlement between the United. States 
of America and the Mexican republic" — ratified on our part on the 
30th of May, 1848, contains in substance the following among other 
stipulations: 

1st. The existence of the tariff of military contributions enforced 
by the President in the captured ports of Mexico, as an element of 
treaty adjustment. 

2d. The exemption of all merchandize imported into such ports 
while occupied by the forces of the United States, and before re- 
storing the same from confiscation by the Mexican government. 

3d. The continuance of said tariff in force for sixty days, after 
the signature of the treaty. 

4th. The delivery of all duties collected by officers or agents of 
the United States, after the ratification of the treaty by the Mexi- 
can government, to that government. Vide 3d, 19th and 20th ar- 
ticles of treaty. 

Thus, the\President is sustained by the force of elementary rea- 
soning, the precedents of other nations, the laws of war uncontra- 
vened'by our constitution or municipal laws, the examples of dis- 
tinguished military men, and the approval of the treaty-making 
power. Should not these accumulated authorities, emanating from 
so many commanding sources, be held conclusive? 

It is known that the tariff of contributions, enforced by the Presi- 
dent, abolished all commercial prohibitions whatsoever, except of 
articles contraband of war; and that it greatly reduced the rate of 
duties imposed by the Mexican tariff upon foreign imports. In 
this effect^'the measure deserved the gratitude of the commercial 
world, rather than its resentment. It was, in effect, the remission 



Rep. No. 119. 19 

of taxes up\>n Mexican imports, whether by American citizens 
or neutrals. As an economical measure, it spared our government 
the expense of keeping up a blockade, whieh would have amounted 
to a very considerable sum. As a diplomatic measure, it opened 
the captured ports of Mexico to the commerce of the world upon 
more favorable terms, and thus avoided all disagreeable collision 
with neutral powers. As a measure of war, it was in exact con- 
formity with our official declarations, that our efforts were directed 
against the government of Mexico, rather than against the people 
of Mexico. To the Mexican people the measure was in effect a 
boon, for it admitted to their use the necessaries and comforts of 
life, drawn from abroad, upon much cheaper terms than they had 
before been required to pay. Upon the Mexican government it fell 
as a heavy blow, for, by admitting commerce into the Mexican 
ports upon the payment of reduced duties, American and neutral 
merchants were induced to hasten the introduction of their goods 
during the operation of the measure, and thus the government was 
deprived of a principal branch of revenue presently, and to some 
extent prospectively. It is doubtful whether any measure could 
have been devised that would have more effectually discriminated 
between the people and government of Mexico; appealing to the 
favor of the former, and cutting off the resources of the latter. 

American citizens cannot justly complain, that American com- 
merce was placed upon the same footing of neutral commerce, for 
it was only by a suspension of the law of war, involving a high 
and responsible act, that it was liable to be admitted at all; and 
for the further reason, that if it had been admitted free of duty, 
neutral commerce would have been transferred to American vessels 
for importation, which would have defeated the object of the 
measure. 

But the question now, arises, upon the second branch of the sub- 
ject, whether the President did not exceed his authority in causing 
the military contributions levied under his order to be applied for 
the support of the war? This question rests upon the same princi- 
ples; and is. determinable by the same reasoning as that of the 
power to levy such contributions; and, therefore, after what has 
been already submitted, it is deemed unnecessary to go into a 
lengthened elementary discussion of it. Contributions are levied 
either to weaken the enemy or to strengthen ourselves, or it may 
be for both objects. If the former be the sole object, the com- 
mander, after seizing the contributions into his own hands, would 
probably pay them into the public treasury; but, if the latter be 
the object, of course the right to apply them accordingly, natu- 
rally and necessarily follows the right to levy them, as the end 
follows the means. In fact, the right to levy is a part of the right 
to apply — they are in truth the same right, originating in the same 
law of necessity, and appertaining alike to the same military agent 
charged with conducting war. 

It is objected, however, that what is thus true under the gen- 
eral laws of war, is contravened by the following provisions of the 
constitution : 



20 Rep. No. 119. 

1st.— "Congress shall have power to raise and support armies, 
but no appropriation of money to that use shall be for a longer 
term than two years." 

2d.— "No money shall be drawn from the treasury, but in con- 
sequence of appropriations made by law," &c 

But, what is the true meaning and effect of these provisions'? 
The constitution'declares that "Congress shall have power to lay 
and collect taxes, duties, imposts and excises, to pay the debts and 
provide for the common defence and general welfare of the United 
States." This grant defines the pov. er of Congress in its whole 
extent, to raise taxes, either by direct or indirect means; and, also, 
defines the only direct and regular sources of revenue contemplated 
by that instrument. True, the proceeds of loans, of public lands 
of captures, of fines, the dividends on stock, &c, may be paid into 
the treasury, but these are all rather accidental receipts forming 
exceptions to the general rule. 

The taxes of every form thus derived, and all miscellaneous ac- 
quisitions regulated by law, must necessarily go into the treasury. 

The constitution demands this, in effect, in several of its pro- 
visions, and particularly in the provision declaring that, " no 
money shall be drawn from the treasury but in consequence of ap- 
propriations made by law," &c. And in fact, the very idea of 
government necessarily includes the idea of a public treasury, in- 
to which the public treasure must ordinarily be paid, and from 
which it must be drawn. Hence, the public moneys being once 
paid into the treasury, they cannot be drawn therefrom, but " in 
consequence of appropriations made by law," nor can they be ap- 
propriated "for a longer term than two years for the support of 
war; which is the correct view of the application of the constitu- 
tional limitations in question. They relate to moneys actually in 
the treasury^ and not to contributions in kind or money unregulated 
by law, and remaining in the hands of the commander. Such con- 
tributions are not in the treasury; and therefore,- cannot be drawn 
from it. True, when Congress have directed,, in pursuance of the 
constitution, that the avails of captures on land," as well as "on 
water," shall be paid into the treasury, or when, in fact, such avails 
have been paid into the treasury, they can only be drawn there- 
from " in consequence of appropriations made bylaw." Command- 
ing authorities may be adduced in support of this general position. 
On the 8th of July, 1818, General Jackson reminded the Secretary 
of War that he had ordered a distribution of the cattle captured 
from the Seminoles among the chiefs and warriors of the Creek 
nation, and asked for the approval of his conduct. In reply, Mr. 
Calhoun, as Secretary of War, addressed him the following com- 
munication, dated July 28, 1818. 

Sir: I have received your letter of the 8th inst. If on examina- 
tion it should turn out that Mr. Mitchell has purchased the cattle 
taken from the Seminoles, which you had ordered to be distributed 
to the upper Creeks, you will cause them to be seized, and will 
exercise your discretion, either to carry the order for distribution 
into effect, or to sell them at auction, at such place as you may 



Rep. No. 119. 21 

deem most advisable. If sold, the proceeds will be placed in the 
possession of the quartermaster's department, to be applied to cur- 
rent disbursments of the department. It is to be regretted that 
any interference has prevented this distribution which you pro- 
posed. » * 

General Scott, too, it will be remembered, in ordering a "tariff 
of duties to be levied in the port of Vera Cruz," further directed 
that the "proceeds of said tariff" should be applied "for the ben- 
fit of the sick and wounded of the army, the squadron, and the in- 
digent inhabitants of Vera Cruz." And thus, by a concurrence of 
argument and example, the double charge that the President had 
unlawfully drawn money from the treasury, and that he had tram- 
pled under foot the limitation of time imposed by the constitution 
upon appropriations for the support of war, usurping to himself an 
absolute power to continue a state of" war as long as he might 
choose, and be able to do so by exactions from the enemy, is swept 
away. We repeat that all these idle chimeras are dispelled. 
Whenever Congress shall have "made rules concerningcaptures on 
land," in conformity with the constitution, the military discretion 
©f the commander will cease to the extent that it may conflict with 
such rules. Law will, then, take the place of force; or, in other 
words, municipal law will have superseded international law. 
Furthermore, it is competent for Congress to repeal the laws rais- 
ing men and money for the prosecution of war, or to pass laws dis- 
banding our armies, or the President may be impeached, and, upon 
conviction, removed from office. Again, his term of office must ex- 
pire at the end of four years, and thus, in various ways, affectual 
checks are imposed upon his military discretion and conduct. 

But it remains to inquire whether the facts of the case do not 
exempt it from the operation of the objections last noticed. What 
are those facts'? The existence of the war, which had been previ- 
ously commenced by Mexico, was recognized on our part by legal 
enactment on the 13th May, 1846. Commodore Stockton after- 
wards, on the 13th August, 1846, issued his order levying a mili- 
tary tariff of duties in the ports of California. Afterwards, on the 
28th March, 1847, General Scott issued his order, of like effect, in 
the port of Vera Cruz: and afterwards, on the 31st March, 1847, 
the President issued his order of like import. Under these various 
orders the sum of $3,289,737,01, exclusive of necessary charges, 
was levied and collected in the ports of Mexico. Now, comparing 
this total with the balances of appropriations for the support of the 
war, unexpended at the end of each quarter of each fiscal year dur- 
ing the war, it will be found that the latter, uniformly and largely, 
exceeded the former. The following* authentic statement will 
verify this position: 



22 Rep. No. 119. 

Balances of appropriations for the support of the war with Mexico, 
unexpended at the end of each quarter, from the 1st of July, 1816, 
to the 1st of July, 1848. 

1846. 1st July— War $4,612,334 13 

Navv 3.212,546 74 

J $7,824,880 87 

« 1st Oct.— War 1 15,549,846 08 

Navv 8,323,822 64 

J 23,873,768 72 

1847. 1st Jan.— War 8,747,506 92 

Navv... 5,180,956 33 

J 13,928,463 25 

« IstApril— War 8,479,717 41 

Naw 4,602,764 79 

J : 13,082,482 20 

« 1st July— War 1,327,703 06 

Navv 2,918,333 11 

. 4,246,036 17 

« l8t Oct.— War 7,785,244 20 

Navv 9,017.231 52 

J . 16,802,475 72 

1848. 1st Jan.— War 6,579,290 34 

Navv 5,586,113 84 

J 12,165,404 18 

« 1st April— War 11,110,318 58 

Navy 4,789,449 98 

y _! ! 15,899,768 56 

« lst Ju iy_ War 5,619,016 92 

Navy 1,229,431 60 

J __ ! 6,848,448 52 



Not only were these balances always larger than the nett amount 
of contributions collected, but it -may be affirmed as a fact that the 
unexpended balances of appropriations for the support of the war, 
at every period, from the recognition of its existence on our part 
to its close, were larger. Thus, if the President had applied the 
whole amount of contributions to the support of the war, at one 
time, the sum would have been still within the lowest amount ot 
such unexpended balances, and would have been as it was, to the 
extent of the fact, a mere substitution of contributions for an equal 
amount of appropriations, leaving the latter in the treasury under 
the control of Congress. The following is an authentic statement 
in detail of military contributions collected in money in Mexico 
during the war, and of the application of the same. 



Rep. No. 119. 



23 



By whom collected. 



Captain F. M. Diamond. 
Same 



Colonel Wm. Gates 

Colonel Wm. Davenport. 
Lt. Col. H. S. Burton... 
Dr. Allen Perry 



Cap. Joseph L. Fcisom. 

Colonel R. B. Mason 

Captain W. G. Marcy. . . 
Talbot H. Green 



Lt. J. W. Davidson 

Captain F. J. Lippett. . . 
Captain W. E. Shannon. 
Lieutenant Canfield 



At what port. 



At Vera Cruz, under General 
Scott's order, March 28, 1847. 

At Vera Cruz, under War De- 
partment's order, April 3, '47. 
Total at Vera Cruz. . . . 

At Tampico 

At Matamoras 

At La Paz, California.. 

.... .do do 



At San Francisco, California. 

At Monterey do. ... 

i do do. ... 

, do do. . . . 



At San Pedro do. 

At Santa Barbara ... .do. 

At San Diego do. 

, do do. 



Deduct — For drawback on goods sold to officers, soldiers, 
sailors, and marines 

For expenses of collection 

For hospitals and the poor of the city paid out 
of the collections, made under General Scott's 
order 



Net revenue. 



Amount. 



$287,186 53 
1,986,753 44 



2,535 35 
724 27 



18,123 01 
4,411 01 
1 ,017 04 



217 73 
159 23 



44,289 22 
66,346 45 

.8,726 76 



There is yet due the Mexican government $25,565 23, collected subsequent 
to the 31st May, 1848. Of the net revenue, $3,289,737 01, there has been 
applied to the public service or paid over to the disbursing officers to be 
so applied , in the prosecution of the war 



Amount. 



',273,940 02 
728,976 52 
330,616 89 



3,259 62 
40,718 42 



23,551 06 
6,058 65 
1,601 30 



376 96 



3,409,099 44 



119,362 43 



3,289,737 01 



Leaving to be accounted for. 



3,207,685 74 



82,051 27 



The balance to be accounted for is almost entirely covered by claims for credits, to be 
supported by vouchers not yet produced. 

This exhibit proves two important points. First, that military 
contributions were enforced in the following ports: Vera Cruz, 
Tampico, Matamoros, La Paz, San Francisco, Monterey, San Pe- 
dro, Santa Barbara, and San Diego, nine ports in all; thus belea- 
guering our enemy with a system of pecuniary exactions, which 
deprived him of a principal branch of his revenues, and forced him 
by a sense of his own weakness, rather than by the effusion of 
blood, to fair terms of peace. This was a masterly yet humane 
stroke of policy. Secondly, the measure exempted our own people 
from the payment of taxes to the amount of at least $3,289,737 01, 
and thus strengthened us in the contest proportionably as it weak- 
ened the enemy. 

And was not this fair in war ? Was it not just to ourselves \ 
Who shall say that it would have been better for our own people 
to have assumed this additional burthen, and to have conquered a 
peace by the mere dint of the sword and the effusion of blood 1 ? 



24 Rep No. 119. 

The economy of the measure may be illustrated in a single trans- 
action. Under the treaty of peace, we became bound to pay to 
the government of Mexico $15,000,000, in consideration of the ces- 
sion of New Mexico and California. Of this sum, $3,000,000 were 
to be paid at the city of Mexico, in the "gold and silver coin of 
Mexico," immediately after the ratification of the treaty, for the 
payment of which the President authorized General Butler to draw 
on the treasury. General Butler, however, applied contributions 
in his possession to the amount of $769,650, and drew on the trea- 
sury for the balance; thus making available to our government a 
large sum of the requisite coin, avoiding the risk and cost of trans- 
porting the same, and the injury to our business of a heavy drain 
upon the precious metals of the country. 

The downfa.ll of many of the governments of antiquity may be 
traced directly or indirectlyto defects in their constitutions; in other 
words, tot he want of a just division and limitation of authority among 
different bodies of magistracy. Sometimes the supreme power was cen- 
tered in the king; sometimes in the senate; sometimes it was exercised 
by the people themselves in primary assemblage; but in all such 
cases despotism necessarily reigned, followed in the course of time 
by civil strife, and in the end by revolution and anarchy. So it 
was in Rome, after the expulsion of the Tarquins, when the senate 
had usurped uncontrolled sway. So it was in Sparta, when the 
ephors had stripped' the kings of their just prerogatives. So it was 
in Poland, when the authority of the executive had been practically 
merged in that of the diet; and so it will ever be in like circum- 
stances. To avoid these evils, the wise men who framed our con- 
stitution carefully classified its faculties, and delegated them ac- 
cording to their nature to different bodies of magistracy. Under 
the first clause of the constitution, it is declared that "all legisla- 
tive powers herein granted shall be vested in a Congress of the 
United States, which shall consist of a Senate and House of Repre- 
sentatives." Unde.r the subsequent specifications of this general 
grant, it belongs to Congress to "declare war," "to raise and sup- 
port armies," and appropriate "money to that use," and "to pro- 
vide and maintain a navy," which is the extent of the direct power 
of Congress to create and sustain a state of war. Congress, also, 
may refuse supplies of men and money, may cause our armies and 
our navy to be disbanded or dismantled, which is probably the ex- 
tent of the direct power of Congress to arrest war and restore 
peace. 

This delegation of authority to originate and in a manner to 
control the existence of war, was wisely conceived and happily 
effected. It sprang, no doubt, from a spirit of popular liberty, and 
was designed to guard against the abuse of power in the hands of 
a single ruler. It has brought the momentous issues of peace and war 
under the practical control of the States, and the people represented in 
Congress, and has shorn the restless spirit of conquest and military 
ambition, naturally impersonated in the executive head, of the 
discretion and the power which have signalized the oppresions and 
atrocities of so many conquerors. We should rejoice at this, we 



Rep. No. 119. 25 

should honor and revere the memories cf our ancestors who have 
assured us of this invaluable guaranty of cur liberties and well 
being. 

But whilst it is the design of the constitution thus to guard and 
check the power to make war, it is equally the design of the same 
instrument to impart to the agents of that power all the faculties 
necessary and proper to secure its successful execution. Hence 
we find that the framers of the constitution avoided the absurdity 
of the Spartan example of two kings, and of the Roman example 
of two consuls, and wisely constituted a single executive in whom 
the executive power of the government is concentrated. The con- 
stitutional provision is as follows: "The executive power shall 
be vested in a President of the United States of America," &c, 
not as "herein granted," or as expressly set forth in the constitu- 
tion as in the case of Congress; but "the executive power" — all 
the executive power of the government — except as it may be ex 1 - 
pressly modified or abated under the constitution, "is vested in the 
President." Under this general grant the President would be na- 
turally the commander-in-chief of our armies and navy, and the 
executor of the laws; and is so, in point of fact, by the express ap- 
pointment of the constitution. He is the representative and agent 
of the executive will and power of the Union, and should be so 
from the reason and propriety of the case. 

In war, particularly, there is an imperious necessity for unity of 
will and of action. Success depends as much, perhaps, upon 
promptitude as upon skill. Delay brings danger, and division is 
defeat. Strategy and force are the chief agents of war, and these 
demand secrecy and the direction of a single hand. Such is the 
testimony of universal experience. Hence, under the laws of war, 
and under our constitution, the general methods of waging war are 
left to the discretion of the executive. Hence the President, in 
the exercise of his military discretion, caused contributions to be 
levied, in several forms, in Mexico, and caused those contributions 
to be applied for the support of the war, as he had a right to do 
under the circumstances. 

To maintain that our navy could not capture a ship, nor our 
armies capture a drove of cattle or a bale of clothing for their sub- 
sistence and comfort, or levy contributions in money for the same 
purpose, which is virtually the same thing, until Congress had de- 
clared their will by law upon the subject, is, in fact, to nullify the 
efficiency of our government in war, blunt the arms of our brave 
soldiers in the field of battle, and to entail upon our country dis- 
aster and contempt. Yet this is understood to be the extent of the 
objection. According to this absurd doctrine, our army would have 
been stayed from seizing — certainly from using the customs 
collected upon commerce for the support of the war, from the date 
of the capture of the city of Very Cruz, on the 27th of March, 
1847, until the regular meeting of Congress on the 6th of Decem- 
ber after, or at least until Congress had met under a special call. 
The same doctrine would have forbidden the destruction of the 4,000 
stands of arms which were captured at Cerro Gordo. According to 



26 Rep. No. 119. 

this doctrine, the government has proceeded in open violation of 
the constitution in every instance of war in which we have been 
engaged, whether with foreign nations or the Indians, for in every 
such war captures have been made atfd disposed of without legal 
regulations, under the direction of the commander. And if such 
were a violation of the constitution, is it not strange that Mr. 
Madison, who has been called "the father of the constitution," and 
who filled the executive office during our last war with Great 
Britain, that even he should not have recommended the adoption 
of legal li regulations" in regard to " captures," as necessary to 
his authority to capture, or at all events to convert the property of 
the enemy, or in other words that he should have been, through 
ignorance or design, the principal in this guilt? And is it not 
equally, if not more strange, that no Congress up to this hour has 
deemed it necessary to enact a law upon this subject? I»f mem- 
bers of the present Congress deemed such a law necessary, they 
should have brought it forward; they should not have continued 
silent while the constitution was being mutilated, until after the 
tribute of the enemy had seized and appropriated, then to cry 
wolf! a mangled constitution! By such conduct they expose them- 
selves to the charge of being parties to the guilt of which they 
complain. No, the true design of our constitution upon this sub- 
ject, is to guard the country against the evils of war unnecessarily 
begun or unnecessarily continued, and to impart to the executive 
arm all the vigor and power of the Union in the prosecution of a 
just war. The first is the constitutional office of Congress, and of 
the President and Senate in the formation of treaties. The second 
is the constitutional office of the President as commander-in-chief. 
The two offices harmonize according to their objects, and should 
be so understood and administered as to protect the liberties and 
happiness of the people on the one hand, and to secure the efficiency 
of our government, and the success of our arms in war, on the other. 
The war through which we have lately passed is destined to 
mark an instructive epoch in history. It has falsified the dogmas 
of monarchists that free governments are unequal to the trials of 
foreign war. It has proven that the safest reliance of a free peo- 
ple is not'upon standing armies, but upon their own virtue, intelli- 
gence and patriotism. What are the events of this war? With a 
standing force of only 7,883 men, when the war broke out, at the 
call of the government more than 400,000 freemen leaped from the 
bosom of society and offered to bear arms in the cause of their 
country, of whom only a small proportion was received. But»with 
inferior numbers, in less than two years, we overran an empire es- 
timated to contain 2,500,000 square miles, deemed by many impreg- 
nable from the number and strength of its natural defences, and 
inhabited by seven or eight millions of 'people. We triumphed in 
the new world by our arms, in the old world by our charities dis- 
pensed among famishing millions, and at the same time the credit 
of our government was never better sustained, nor our people more 
prosperous. So grand and gigantic a spectacle was never before 
presented to the world. It was reserved for the superior develope- 



Rep. No. 119. 27 

ment of republican liberty and democratic energies. Our unshaken 
devotion to our country, our brilliant and uninterrupted victories, 
our vast and varied resources surprised while they dazzled man- 
kind Henceforth the consent of the world will rank us among 
the 'great powers of the earth. But let it be said in justice to 
President Polk that over this victorious scene his genius presided; 
that from his wise counsels the giant stature of this marvellous suc- 
cess sprung. Of him it will be said in future time that he was the 
oro-anizer of American victories, as it is now said of that sturdy 
and incorruptible republican, Carnot, that he was the organizer of 
French victories. Of him it will be said that he was a chief magis- 
trate whose patriotic career combined equally the honors of the 
civic crown and the laurel wreath. 

War, although a scourge, has also been a civilizer of natl ° ns ; 
sometimes it enlightens the invader, sometimes the invaded, ihe 
Greek*, and afterwards the Romans, introduced their civilization at 
the same time with their arms among the half savage Gauls, and 
when in turn these barbarians had overrun their former masters, 
they established among them their military hierarchy, the traces of 
which are still existent in the feudal system. What adversity is to 
individuals war is to nations, some it may crush, others it may 
rouse and exalt. It calls into exercise theiiigher and nobler qual- 
ities of nations as well as of individuals; it forces into sudden 
and brilliant action the arts and the virtues that are stimulated by 
necessity, and that are matured by the energy of distress. So it 
was with Greece, after the deluge of the Persian arms rolled back 
to its eastern bed. Then it was that Greece rose conspicuous and 
majestic above the rest of the civilized earth. So it was with 
Rome after the wars with the Volsci, the Sabines, and the Aurunci, 
that preceded and in a manner paved the way for the tribunate of 
the people, after the institution of which the Roman name and 
power were spread throughout the world; and so we hope it may 
be with Mexico, late our enemy, but now our friend. We hope 
that her collision with a free and enlightened nation, while it has 
brought evil, may also bring to her aid the quickening energies ot 
regeneration, improvement, and a higher and progressive civihza- 

tl0n ' JOHN A. McCLERNAND. 

A. W. YENABLE. 



28 Rep. No. 119. 

Mr. Stanton, from the same committee, submits the following 



views: 



The undersigned, member of the select committee, to whom was 
referred the message of the President in reference to the tariff of 
duties levied in the ports of the enemy during the late war with 
Mexico, dissents altogether from the report of the majority. He 
concurs in the conclusions and in mostof the reasoning adopted by 
the minority. But as the constitutional questions involved are of 
the gravest importance, it is due to the occasion that they should 
be presented in their true light. It is due also to the signal ability 
with which the late war was conducted, and to its success and 
brilliant results, that the act of the President, if defensible at all, 
should be placed upon impregnable grounds, so that no stain shall 
mar the history of our triumphs. Believing that the legality of the 
measures sought to be condemned is susceptible of demonstration, 
and yet not being able to concur in the main position of the argu- 
ment by which this has been attempted, the undersigned feels it 
to be due to himself to state the points of difference between him 
and those of the committee in whose conclusions he concurs. The 
briefest mode of doing this will be to present a succinct outline of 
his own views. 

There is no difference of opinion in the committee or elsewhere, 
as to the right of the government of the United States, to exact 
the contributions in question. It is unnecessary, therefore, to 
quote from the works of writers on the law of nations, to establish 
a position which is not disputed. But it is insisted that this belli- 
gerent right, thus fully recognized by the law of nations, is one 
which properly appertains to the legislature and not to the execu- 
tive. The question is thus disembarrassed of all difficulty except 
between the co-ordinatebranches of our own government, and is nar- 
rowed down to the simple inquiry, as to the manner in which, 
under our constitution and laws, the government may exert a power, 
which, in itself, is admitted to be proper and legitimate. 

In order to determine this question, it is necessary to ascertain 
the nature and origin of the power. Now, if the government of 
the United States (by which it is intended to speak of Congress) 
had authority, during the war, to exact these duties in the con- 
quered ports of Mexico, that power is evidently not to be derived 
from the constitutional grant, "to lay and collect taxes, duties, 
imposts, and excises." If the power flows from this clause of the 
constitution, it must be conceded that the President could in no 
case exercise it. But there is no indication in the words of this . 
clause themselves, or in their connexion, that they were intended 
to confer the power even in time of war,' to tax the people of any 
territory other than our own. The contrary is to be plainly inferred 
from the closing words of the sentence, which are as follows: "but 
all duties, imposts, and excises shall be uniform throughout the 
United States." It had been provided in a preceding part of the 
constitution that "representatives and direct taxes shall be appor- 
tioned among the several States which may be included within this 



Rep. No. 119. 29 

Union, according to their respective numbers," &c. Every refer- 
ence to the taxing power to be found in the instrument, seems thus 
to contemplate the exercise of that power only within the limits of 
the United States. In the very nature of things it could not well 
be otherwise. Our constitution itself had its origin in the great 
principle that taxation and representation are inseparable. And the 
clauses already cited, limited and guarded by the peculiar terms 
used, can have reference only to those internal contributions which 
the people of the United Stales, by their representatives, willingly 
pay for the maintenance of the government. 

If the power to exact contributions of any kind in the enemy's 
country does not flow from the ordinary taxing powers conferred 
in the constitution, whence then does it comfl Evidently, from 
the war powers contained in that instrument. The power to wage 
war involves this right. The usages of ail nations, and the code 
of laws founded upon those usages, and recognised as binding by 
"all civilized people, have sanctioned it in some form or other, from 
time immemorial, as an incident to the state of war. It is the power 
to capture the enemy's towns and territories, which implies the 
right to exact contributions from them. The law of nations de- 
fines and limits this right; but that law becomes a part of our con- 
stitution, inasmuch as the power to wage war is contained in it. 
If war be prosecuted at all, it must be in conformity with the law 
of nations. Our constitution even could not alter that law, be- 
cause it cannot reach other nations; and the rights of war must be 
reciprocal. The right of resistance and defence, and the equality 
and mutuality of that indefeasible natural right, would, in every 
emergency, become superior to all human laws and all human con- 
stitutions. Hence the framers of our government have very wisely 
conferred upon it the unrestricted power of waging .war as fully as 
other nations, of whatever form of government, may do. 

But while our constitution, confined in its operation to a single 
people, cannot alter the law of nations which operates upon all, 
and while it has thus adopted the most unlimited war powers 
known and recognised as belonging to independent governments, 
it, nevertheless, can and does circumscribe, limit^ and define the 
powers and duties of the respective functionaries created by it. It 
is not, therefore, to the law of nations that we can refer, in order 
to solve the present difficulty; but we must look to the provisions 
of the instrument by which the powers of our government are dis- 
tributed among its several departments, and to any laws whichmay 
have been made in pursuance of those provisions touching the sub- 
ject in question. 
" Congress is invested with power "to declare war, grant letters 
of marque and reprisal, and make rules concerning captures on 
land and water;'- also u to raise and support armies," and "to pro- 
vide and maintain a navy." On the other hand, by the constitu- 
tion the President is made " commander-in-chief of the army and 
navy," and has imposed upon him the duty "to take care that the 
laws be faithfully executed." Such are the general functions of 
these respective constitutional agents in reference to war. Con- 



30 Rep. No. 119. 

gress is to make law?, and the President is to execute them, upon 
this as upon all other subjects within their prescribed limits. 

But the legality of the President's act is to be considered in re- 
ference to the laws as they existed when his order was given, and 
not in reference to any laws which Congress might have passed, 
but which, in fact, were not enacted. The discussion does not in- 
volve the power of Congress to prescribe rules to control the Pre- 
sident in the performance of his constitutional functions, or the 
validity of any restrictions which might hav« been imposed in the 
act declaring war, inasmuch as no such rules or restrictions were 
at any time attempted. If there be any difficulty in determining 
how T far the President may be controlled in the prosecution of a 
lawful war by the Authority of Congress, that difficulty does not in 
the least degree embarrass this investigation. The whole case 
stands upon the simple, broad declaration of war, and the command 
in that act, directing the President to prosecute it to a speedy and 
successful issue. 

What, then, in this precise of things, were the duties and powers 
of the President 1 ? He was commanded by the proper constitutional 
authority to execute a given work. Ample means were provided; 
but no rules, regulations or restrictions were prescribed. In sub- 
stance he was commanded to conquer and subdue Mexico, and in- 
asmuch as he was not instructed how he should accomplish this 
object he was bound to adopt the best and most efficient mode. An 
unlimited discretion, within existing laws, (including the law of 
nations,) was necessarily conferred upon him. 

In any other case in which the President is directed in the same 
general manner to perform a particular work, a similar latitude of 
discretion is always given. He is required, for example, to con- 
struct a ship of war. Congress has the undoubted right to order' 
the work to be done by contract, by the hired agents and officers 
of the government, or by any other means whatever. But if no 
such provisions are adopted, ar.d no similar regulations exist in 
prior laws, then the discretion of the President is unlimite'd as to 
the means to be employed and the mode adopted for the object in- 
dicated. He may build the ship of wood or of iron, and may em- 
ploy steam or canvass as the motive power, as his own judgment 
may dictate. He is responsible only for the wisdom, efficiency 
and economy of his proceedings. 

It cannot be otherwise with reference to the prosecution of a 
war. The subjugation of the enemy is to be effected by every pos- 
sible means. His armies are to be overthrown, his cities captured, 
his territories occupied, his property seized. He is to be oppressed 
by every possible injury, and forced to submit to the will of the 
conqueror. This is war; this was the well defined meaning of that 
term when it was adopted into the constitution. The law of na- 
tions, based upon the acknowledged obligations of humanity and 
reason, is the only limitation which can control the means or the 
mode of effecting the objects of war. When Congress bade the Pre- 
sident make war upon Mexico, his discretion, not being limited by 
the act, could possibly have no other guide or restriction. He 



Rep. No. 119. 31 

went forth with this law of nations in his hands as the only chart 
by which his movements could be directed. 

It is admitted that the belligerent government may do precisely 
what the President did in this case, but it is insisted that the Pre- 
sident is not the government. Yet when the government commands 
the President to accomplish a particular object, and does not limit 
his discretion as to the mode or means of doing it, it necessarily 
follows that the President is clothed with all the discretion which 
the government itself might have exercised upon the subject. The 
very argument that our government might have levied these taxes 
in the conquered ports, involves the admission that such an exaction 
was a legitimate and proper means of conquering the enemy; for 
there could be no other justification and no oth«r object for the act. 
If it was a legitimate and proper means, the President was not 
merely authorized, he was commanded to use it. He would have 
been wholly unjustifiable, had he suffered any such opportunities 
and means to pass unemployed. , 

These considerations, it is believed, will show the error of the 
majority of the committee, when they suppose that the President's 
justification is placed upon the principle, as stated by them, that 
u the non- exercise of a power granted to the legislative branch of 
the government forfeits it to the executive. Such is not the posi- 
tion here assumed. Congress has power "to make rules concern- 
ing captures on land and water. But the very object of war is to 
make these captures — there is no other way of prosecuting it. The 
President is commanded to make them, and that is the end to 
which all his movements are directed. He must, if possible, cap- 
ture the enemy's armies, his towns, and his property of all kinds. 
Slaughter is not the purpose of war, but is always to be avoided, if 
a capture can be accomplished without it. The bloodshed attend- 
ing the capture of the city of Mexico was not the result aimed at 
by our arms; the capture itself was the legitimate end. If war is 
not to be considered as the mere wantonness of cruelty and re- 
venge, it consists in nothing else*but captures. When, therefore, 
the President was commanded to wage the war, his mission, after 
repulsing the enemy, was to capture, and nothing but to capture. 

Strangely enough, however, the majority of the committee have 
referred to the case of Brown vs. the United States, in 8th Cranch, 
to sustain the doctrine that the President, after a declaration of 
war, has not the right to capture the enemy's property. But this 
is not merely a ttftal misapprehension of the purposes and objects 
of war, but also of the true scope of the decision referred to. That 
decision proceeds upon the ground that the persons and property 
of enemies, found in our limits at the moment of the declaration of 
war, do not, by virtue of that declaration, become confiscated 
without an act of Congress. Judge Marshall, who delivered the 
opinion of the court, quotes from Vattel the following passage: 
" The sovereign can neither detain the persons nor the property of 
those subjects of the enemy who are within his dominions at the 
time of the declaration." This principle runs through the whole 
opinion, while, at the same time, it is clear from various sentences 



32 Rep. No. 119. 

that the right* to capture property on the seas, or in the enemy's 
country, is admitted throughout. The learned judge even denied 
that there was any evidence that (; the seizure was made under any 
instructions from the President of the United States." The case, 
therefore, does not touch any point involved in this investigation. 
In the very able dissenting opinion of Judge Story, in which he 
was sustained by one of his brethren, he says: " The opinion of my 
brethren seems to admit that the effect of hostilities is to confer all 
the rights which war confers; and it seems tacitly to concede that, 
by virtue of the declaration of war, the executive would have a 
right to seize enemies' property which should actually come within 
our territory during the war." The general right to make captures, 
therefore, was not involved in this case at all. The modern relax- 
ation of the laws of war in favor of persons and property found in 
a country at the commencement of hostilities — a just relaxation, 
made in view of the confidence and good faith necessary to sustain 
commercial intercourse during peace — seems to have been the 
chief ground of the decision. 

Tt is, then, clear that the executive has the right to make cap- 
tures. But Congress has made no rules in reference to captures on 
land; and it is argued that the President can make none, because 
the non-exercise of the power by Congress does not confer it upon 
him. It is true, the President can establish no laws on the subject 
which would overrule the expressed will of the legislature, or 
which would be obligatory upon any successor. Yet, in the very 
fact of making captures, and preserving or disposing of them, it is 
impossible for him to avoid the necessity for rules. Every milita- 
ry order in relation to such captures constitutes a rule. And to 
deprive the President of this incident of making temporary rules, 
would be, in effect, to deprive him of the power of making captures, 
or, at all events, of preserving them when made. This would be 
nothing less than to cripple, or rather to destroy, the only effectual 
and legitimate means of waging war. It is not, therefore, because 
the non-exercise of the power by Congress forfeits it to the Presi- 
dent, but because the failure of the legislature to provide rules im- 
poses upon the President the unavoidable duty of controlling his 
subordinates by such rules for the maintenance and preservation of 
his conquests as will, in his judgment, best promote the accom- 
plishment of the task he has to perform, viz: the subjugation of 
the enemy. There is a wide difference, however, between this 
duty of the President and the plenary power of Congress. The 
former can do nothing but what is directly involved in, and dis- 
tinctly directed towards, the defeat and oppression of the enemy, 
comprising only so much power as is necessary fully to obey the 
commands of the law-making power; while, on the contrary, Con- 
gress may make rules of any other sort in reference to these con- 
quests, and may dispose 0/ them for any other purpose unconnect- 
ed with the ultimate object of the war. The legislature might dis- 
tribute these conquests among the officers and men of the army, or 
might place the proceeds in the treasury for general purposes; but 
the executive could make no such rules. All his acts and regula- 



Rep. No. 119. 33 

tions must be such only as are legitimate and proper for the pur- 
pose which he is commanded by the law to execute. The silence 
of the laws on this subject does not deprive him of discretion, but 
places the greater burthen upon his judgment. His powers must 
be adequate to his task, and his latitude of discretion equal to 
every emergency. 

It must be very obvious, that the whole difficulty in this part of 
the transaction, arises from the misapprehension that the tariff 
levied in the Mexican ports, was not an exercise of the war power 
for the oppression of the enemy; but was a usurpation of the ordi- 
nary taxing powers, conferred upon Congress by the constitution. 
It is argued, that the ports, having fallen into the hands of our 
army, became ports of our territorial possessions, and, therefore, 
subject to the operation of the provisions of our constitution. But 
this position cannot be maintained. The towns and territories then 
held by our arms were still subject to the events of the war. It 
will scarcely be claimed that they were absolutely ours, in the 
same sense, and to the same extent that our proper territory be- 
longed to us. Continued possession, for great length of time, 
would have authorized our government to treat those territories as 
a part of our country. To determine, in the absence of a treaty,' 
when this absolute control should be assumed, was the province of 
Congress'alone. Whenever Congress should think proper thus to 
incorporate the conquered territory into our own, the power of the 
President would be instantly arrested. Butuntil thisauthority should 
be exercised, the commander-in-chief of the army could only hold 
those territories as parts of the enemy's country. While so held 
iri military possession, unrestrained and uninstructed by his 
legislature, he not only has the right, but he cannot escape the ne- 
cessity to control the intercourse of our citizens and neutrals with 
the inhabitants of the conquered territories. This right is essential 
to his own safety as well as to the maintenance of his conquest. 
The exigencies of the war may force him to abandon his conquests, 
and they would then again become what they had not entirely 
ceased to be, the property of the enemy. The temporary, preca- 
rious, and uncertain possession of territories conquered during war, 
does not create an absolute title to them, much less, under our con- 
stitution, does it incorporate them into our domain, and entitle 
them to the constitutional rights of our territories proper. Possession 
must be sanctioned by time, and strengthened by the exercise of 
stable power and authority; and, beyond all this, must be recog- 
nized by the direct act of Congress, before such territory can be- 
come a part of this Union. 

As commander of the array, then, the President was in tempo- 
rary occupation of a part of the enemy's country, held as such, 
and not as a part of our own country. He seized the revenues cf 
the country, because they were the revenues of the enemy and not 
ours, except by the right of capture in war. His object was to 
oppress the enemy, whether by imposing these burthens upon his 
commerce or by making the taxes lighter and more productive in 
order to increase his means of effective warfare. He did not usurp 



34 Rep. No. 119. 

the taxing power of Congress, because that power extends not be- 
yond our own limits. His design was to conquer the enemy. To 
defeat his armies in battle was scarcely so effective a mode of do- 
ing this as to cut off his resources in the mode adopted, and turn 
them to the support of our own arms. Scattered armies might 
again rally, or new ones be organized; but revenues sequestered 
could not have been replaced. You may weary the uplifted arm 
in the conflict, or you may wound it for the time; but if you cut 
the nerve which connects it with the body, or stop the blood which 
sustains it, - you paralyze it forever. 

Various objections, however, are started against the peculiar cha- 
racter of thi . measure as directed towards the subjugation of the 
enemy. The majority ,repoi»t states one of them, in substance, thus: 
" Blockade is one of the ordinary modes of making war; levying 
duties is exercising the power to make laws. One results from the 
duty to make conquests; the other from the right to govern them 
when made." If a military commander makes a conquest, he must 
necessarily govern it. The sovereignty is, for the time being, 
wrested from the enemy; and every principle of reason, humanity, 
and law requires that order shall be maintained, and all measures 
adopted necessary to hold and preserve the conquest. But this 
measure of taxation, though similar to the ordinary functions of 
government, was not adopted with any view to the exercise of such 
ordinary functions. It was designed to give greater force to our 
arms — it was intended to divert the electric current which had sup- 
ported the nerves of the enemy into our owji, and thus to animate 
and strengthen our own army while we paralyzed that of the ene- 
my. When the bishop's palace was taken at Monterey, it was* 
deemed legitimate to turn its batteries upon the citadel and the 
plaza. When Vera Cruz, Tampico, and the other ports were 
taken, it was equally legitimate to turn all their resources, of 
every kind, upon the citadel of the enemy in his capital. If any 
officer during the war had captured ammunition fr.om the enemy 
he might have destroyed it, or what would have been still better, 
he might have used it against the enemy in furtherance of the gen- 
eral objects of the war. But if neither of these were necessary 
or advisable, he might have sold it and placed the proceeds in the 
military chest. 

From the foregoing considerations follows the obvious reply to 
the other objection, which is one of the main points of the majo- 
rity report, viz: That although the President might possibly have 
had authority to levy these taxes, he had no power to disburse 
them. So far from this proposition being true, it was the piirpose 
for which the disbursement was made that constituted the justifica- 
tion of the tax itself. If the object of the tax had been merely 
to exercise the ordinary powers of government, or to raise money 
for general purposes, the President could not have levied it. If it 
was not designed to promote the subjugation of the enemy, and if 
it had not operated upon the resources of the enemy himself, which 
resources are legitimate prey to belligerents, then the act was 
wholly without authority, But if such was the end designed by 



Rep/No. 119 35 

the tax, then it was the application to that end, and this applica- 
tion alone, which rendered it legal and proper, and within the scope 
of the work which, by the declaration of war, the President was 
commanded to execute. There were two absolute principles which. 
# could not be violated without usurpation: First, the exactions were 
to be from the enemy, because his property alone was subject to 
be - seized; and, secondly, they were to be applied to objects au- 
thorized by the laws of the United States, and to none other. 
Within these two principles the President's discretion was unlim- 
ited, save by the laws of war, as before shown. The first of 'these 
principles is observed, if the President has used the means of col- 
lecting taxes which clearly belonged to the enemy, and has applied 
them to subjects legitimately taxable by him; for, in doing this, he 
has but availed himself of the enemy's resources and means of re- 
sistance upon the same principle that he would use any other in- 
strument of war which he might wrest from the enemy. 

It is assumed in the report of the majority, that the revenue col- 
lected was applied to objects not authorized by the laws of Con- 
gress. If this be true, such application was wholly illegal. But 
the undersigned has seen no evidence that any such illegal appli- 
cation of the fund was ever made; and, certainly, no such evidence 
has been before the committee. 

It is again objected, however, that the regulation adopted was a 
relaxation of the laws of war, a diminution of the taxes existing 
by law in Mexico, and, therefore, to that extent, a relief to the 
enemy instead of an oppression. But there are two results to such 
a proceeding, both equally efficient as means to an end. First, to 
weaken the enemy, and then, to strengthen ourselves. The one 
was effected by cutting off the whole revenue of the enemy; the 
other was promoted, in an eminent degree, by reducing the taxes 
and rendering them doubly productive. The only offset to this 
advantage was the fact that goods, not contraband of war, were 
permitted to reach the interior of the enemy's country. But this 
disadvantage, if it was one at all, was still further lessened by the 
tendency of the measure to invite all the commerce which might 
possibly have entered Mexico, along the whole line of its 
immense territory, to the ports in our possession, by reason of 
the lighter duties then exacted. If these results could be accu- 
rately balanced, the advantage would be found greatly on our side. 
Indeed the conception of tjhis measure was one of the most bril- 
liant efforts exhibited during the whole war. It was a masterly 
stroke of genius, and tended more powerfully than anything else 
to bring the war to a favorable termination. 

It is still further objected that these taxes did not operate upon the 
enemy, but upon neutrals and our own citizens. This is believed to be 
an .erroneous conception of the effect and operation of impost du- 
ties. But whether the principle asserted, that the consumer pays 
the duty, be true or false, the legality of the measure is not at all 
affected by that consideration. The operation of any war measure, 
to the injury and obstruction of the commerce of neutrals or our 
own citizens, is no test of its validity or legality. War itseff, by 



36 Rep. No. 119. 

force of its very existence, generally prevents or destroys most of 
the commerce of the belligerents. If this injury to commerce be 
a test, then a blockade, which is an act of admitted legality, 
would be still more unjustifiable, because its effects are still more 
disastrous. But in another point of view the objection is wor%e 
than idle and futile; it is absurd and paradoxical. The effect of the 
measure was to open the blockade, which might have been kept 
close — to admit commerce, which might have been wholly excluded. 
The duties demanded were voluntarily paid. They were not ex- 
acted upon a commerce which started up in ignorance that such 
duties were to be paid, or which expected to escape all exactions. 
No citizen or neutral could have demanded, as a right, to trade 
with the enemy upon better terms than the enemy's laws allowed. 
The relaxation of those laws and the raising of the blockade, in- 
stead of being ground of complaint to any one, was a matter of 
favor and relief to all persons desirous of engaging in commerce 
with the enemy. 

Accordingly, so far as the undersigned knows, no complaint has 
ever been made by any interested party. On the contrary, the 
favorable opportunity thus given to trade with Mexico, was by 
many interested persons deemed an important advantage to their 
commerce. But, in truth, the act falls within the operation of 
another very plain principle, which has been already stated. The 
President has only seized an advantage which belonged to Mexico, 
a right necessarily attached to the possession of the ports, and in- 
cident to th? very existence of commerce. They were the enemy's 
taxes which were seized, although they operated upon neutrals and 
our own citizens. The process by which they exacted, the form in 
which the power was exerted, were, it is true, military in every 
sense; but the source of this authority, its origin, and justification, 
was the right of Mexico herself to make the exactions. This 
right, wrested from Mexico by force of arms, became a legitimate 
instrument of further conquest in the hands of our commander, no 
matter upon whom it operated when thus enforced. The taxes 
were moneys due to the Mexican government; they were captures, 
therefore, as legitimate, as if they had been negotiable bonds or 
bank notes transferable by delivery, no matter who might have 
been the responsible payors — neutral citizen or enemy. 

The undersigned has thus given a brief vi-ew of the argument 
which convinces him that the act of the President, now in ques- 
tion, is wholly unassailable, either in its legality or in its policy. 
There are various other strong considerations tending to strengthen 
this conviction; but as they are well and ably set forth in the re- 
port of the minority, (Messrs. McClernand and Venable,) the un- 
dersigned will not undertake to state them. He will, however, take 
occasion to say in conclusion, that after all which can be said in 
condemnation of the Executive, it must be gratifying to the coun- 
try, that in the facts which give rise to this grave question of 
doubtful functions and disputed powers between two co-ordinate 
, branches of the government, there has been no actual conflict of 
authority. On the contrary, if this measure of the President has 



Rep No. 119. 37 

not been directly sanctioned by both branches of Congress, it has at 
least passed without any objection on their part, after having been 
distinctly made known to them in various official communications. 
This significant silence on the part of the legislature, and the fact 
of its abstaining from all interference with functions which it was 
well apprized the President was exercising, give the stongest pos- 
sible indication of its conviction, that he was acting wisely and 
legally in his mode of executing the laws whieh had been enacted. 
In view of this undeniable truth, it is submitted with great defer- 
ence, that to adopt the resolution proposed by the majority of the 
committee, will involve this House equally in the condemnation it 
pronounces against the President. For the representatives of the 
people at the last session of this Congress did, in this body, com- 
posed of a majority of opposition members, silently acquiesce for 
months, without attempting to arrest or to punish them, in the com- 
mission of what it is now attempted to denounce as impeachable 
crimes committed by the President. 
All of which is respectfully submitted. 

F. P. STANTON. 



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